Appeals Process

What Is an Appeal?

Losing at the trial level in criminal court can be devastating. Filing an appeal is a chance to correct significant errors, whether they be procedural or substantive.

An appeal is the process whereby a party who loses in the trial court can have a higher court review the correctness of that trial court decision. It is important to note that an appeal is not a retrial of the same case in the higher court; rather, an appeal reviews whether the trial court committed legal error based upon the evidence already presented at trial. Although an appeal can challenge both procedural errors and substantive law errors, it is critical to understand that not every error in the trial court is appealable. Notably, only significant “reversible” errors are appealable.

Generally, appeals can only be taken from final judgments or, occasionally, an appealable order. Thus, if an adverse interim order is not appealable, it is nonetheless reviewable by the appeals court in a petition for writ of mandate. However, whereas appeals from final judgments and appealable orders are mandatory, petitions for writs of mandate are discretionary (and rarely even considered).

Filing an Appeal

An appeal requires the timely filing of a brief notice of appeal and the payment of the fees for the appeal. Additionally, virtually every appeal requires the parties to designate what records they want the appeal court to consider; these records are usually contained in the clerk’s papers and the reporter’s transcripts. Once both sides have provided the appellate court with the complete record on appeal, the parties are notified as to when the opening brief, responding brief and reply briefs must be filed. Once the briefs are received, the appeals court will have oral argument. Thereafter, the court will render its written opinion. Although most opinions are unpublished, if the appeal presents important or novel rulings of law, then the opinion may be published, thereby making that published decision legal precedent.

It is important to understand the difference between the courts of appeal and the state supreme court. A common misconception is that the supreme court reviews to see if the court of appeal made an error; although that was probably true many years ago, the supreme court is much too busy to review possible legal errors by the appeals court, especially with the mandatory review of capital criminal cases. Instead, the supreme court mainly reviews only important questions of law or inconsistent rulings by different districts of the courts of appeal. In that regard, petitions for review to the supreme court are rarely granted.

California State Court Appeals Process

In state court proceedings, the appeal process commences with the filing of a notice of appeal. Although the notice can be brief, it must be filed within 30 days of the judgment. The appellant must procure the record on appeal, which usually consists of the clerk’s papers of the filings in the trial court, as well as the reporter’s transcripts of the court hearings that are so reported. Each side then files its briefs with the appeals court, which is then followed by oral argument and then the decision of the court of appeal.

Washington State Court Appeals Process

In state court proceedings, the appeal process commences with the filing of a notice of appeal. Although the notice can be brief, it must be filed within 30 days of the judgment. The appellant must procure the record on appeal, which usually consists of the clerk’s papers of the filings in the trial court, as well as the reporter’s transcripts of the court hearings that are so reported. Each side then files its briefs with the appeals court; this is followed by oral argument and the decision of the court of appeal. Most decisions by the appellate courts are unpublished; however, if the appeal presents new or novel rulings of law, then the decision may be published, thereby becoming legal precedent for future cases.

Hiring an Attorney Focused on Appeals

It is extremely important to hire an experienced and knowledgeable appellate attorney. Many trial attorneys make the profound mistake of waiting to contact appellate counsel until the trial court renders its adverse judgment. However, competent trial lawyers know that it is smart business to have appellate counsel advise how to preserve issues and evidence for possible appeal, while also helping to identify appealable issues in advance.

California

Washington

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